M.G.MOHANAN v. M.MOHAMMED MEERAN, S. AYYAVU, United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939 MACA.No. 2503 of 2010 ( ) -------------------------AGAINST THE AWARD IN OPMV 18/2003 of ADDL.DISTRICT JUDGE & ADDL. MACT,PATHANAMTHITTA, DATED 12-05-2010 APPELLANT(S)/PETITIONER: ----------------------- M.G.MOHANAN AGED 55 YEARS, S/O.LATE V.S.GOPALAN,SHIJIL VILLA, MADAMON(PO), VADASSERIKKARA,PATHANAMTHITTA DISTRICT. BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX RESPONDENT(S)/RESPONDENTS: -------------------------- 1. M.MOHAMMED MEERAN,NO.37, ROUND ROAD PUTHUR,DINDIGUL, TAMILNADU, PIN-624801 (OWNER OF LORRY BEARING REG.NO., T.C.M.5699). 2. S.AYYAVU,S/O.SUNDARAN, EARAKKAPPATTI SAMUTHIRAPATTI.P.O, NATHAM T.K. TAMILNADU., PIN-624402 (DRIVER OF LORRY BEARING REG.NO.TCM 5699). 3. THE UNITED INDIA INSURANCE CO.LTD, BRANCH OFFICE DINDIGAL,MYTHILI NIVAS, 54-A, PALANI ROAD,DINDIGAL.(INSURER OF LORRY BEARING REG.NO.TCM 5699). R3 BY SRI.JOHN JOSEPH VETTIKKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ========================== M.A.C.A. No.2503 OF 2010** **==========================** Dated this the 13[th] day of November, 2017 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment and award dated 12.5.2010 in O.P.(MV)No.18 of 2003 passed by the Additional M.A.C.T, Pathanamthitta. The appellant-petitioner seeks for enhancement of the quantum of compensation awarded by the Tribunal. As per the impugned award, the Tribunal awarded a total compensation of Rs.5,23,873/- with interest at the rate of 7.5% per annum from the date of the petition till realisation. 2. Before the Tribunal, the petitioner got himself examined as PW1 besides getting marked Exts.A1 to A18. On the side of the respondents, no evidence, either oral or documentary, was adduced. It is appreciating the rival contentions and the evidence on record that **M.A.C.A.2503/2010** 2 the Tribunal passed the said award as mentioned hereinbefore. 3. Heard. 4. The accident which led to the filing of the claim petition under section 166 of the Motor Vehicles Act occurred on 21.7.2001. He was a passenger in the Maruthi Zen car bearing Reg.No.KL-3/C8649. At the place of accident, the said car was hit by a lorry bearing Reg.No.TCM-5699 driven by the second respondent. After appreciating the evidence on record, the Tribunal held that the cause of accident is the rash and negligent driving of the lorry by the second respondent. Being the owner of the offending vehicle, the first respondent was held vicariously liable and since the vehicle in question was having valid insurance coverage, the third respondent was called upon to indemnify the insured owner viz., the first respondent. Despite fastening of liability jointly and severally, none of the respondents preferred any appeal. So also, they have not taken up any cross objection in this appeal. In such circumstances, it has to be taken that there is no dispute regarding the cause of the accident as **M.A.C.A.2503/2010** 3 also the liability of the third respondent to indemnify the first respondent. 5. We will now proceed to consider the question whether the appellant is entitled to get enhanced compensation under any head. 6. The main grievance of the appellant is that despite the averment in the claim petition that the appellant was a photographer and videographer and despite the production of Exts.A13, A16 and A18, the Tribunal has fixed the monthly income of the appellant notionally at Rs.3,000/-. It is the submission of the learned counsel that it is the erroneous fixation of the monthly income that deprived just compensation to the appellant. True that the appellant had specifically averred in the claim petition that he was running a studio and he was also a photographer and videographer. He himself mounted the box to give evidence in tune with his pleadings. Ext.A13 would reveal that he was paying service tax. Ext.A16 is the license issued from Ranni Perunadu Grama Panchayat. Ext.A18 is the identity card issued by the All Kerala Photographers Association. **M.A.C.A.2503/2010** 4 Though in the light of the said documents, the appellant/petitioner supported his claim regarding occupation and income, no serious cross examination was made by the respondents on such aspects. It is to be noted that in respect of a coolie who met with an accident in the year 2004, the Apex Court had fixed the monthly income for calculation purpose as Rs.4,500/- [ **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** In this case, the appellant has adduced evidence to show that he was running a studio and he was also a videographer. Taking into account the nature of the evidence adduced by the appellant, we are of the view that there was absolutely no reason to disbelieve the claim of the appellant regarding occupation and income. Hence, we are inclined to fix Rs.6,000/- as his monthly income. The learned counsel further contended that the Tribunal went wrong in assessing the permanent disability. The permanent disability sustained by the appellant owing to the injuries sustained in the accident was assessed under Ext.A5 certificate, which is issued by a duly constituted medical **M.A.C.A.2503/2010** 5 board, as 46%. Evidently, the Tribunal took the entire percentage certified thereunder for calculating compensation therefor. In the light of the aforesaid circumstances, we do not find any reason to hold that the Tribunal had committed an error warranting an interference in the matter of assessment of disability. The multiplier was correctly adopted by the Tribunal with reference to the age of the appellant at the time of the accident. In short, a re-assessment of the compensation for disability has to be made only by substituting the monthly income re-fixed by us. On such re-assessment, the appellant is entitled to get an additional amount of Rs.2,15,280/- (6000x12x13x46/100-215280). It is granted. In the accident, the appellant sustained the following injuries:- 1. Head injury 2. Cervical cord contusion at C3/C4 and C4/C5 level 3. C.Spine tenderness 4. Postero central disc extrusion of C5/C6 disc. 5. Posterior disc bulge of C3/C4 and C4/C5 6. Prevertebral haematoma in the cervical region. 7. Posterior disc bulge of 15/31 disc 8. Lacerated injury above right eye brow and upper eye lid **M.A.C.A.2503/2010** 6 9. Lacerated injury right side of cheek (1x0.5cm) 10. Multiple abrasion over face. Taking into account the nature of injuries and their impact, we are of the view that the period of loss of earning ought to have been taken as one year. Taking into account the re-fixed monthly income and the period of loss of earnings, the appellant is entitled to an additional compensation of Rs.54,000/- thereunder. It is granted. Taking into account the nature of injuries sustained by the appellant, we are inclined to take three months period for the purpose of computing the pecuniary loss towards bystanders expenses as also extra nourishment. At the rate of Rs.150 per day, the appellant will be entitled for an amount of Rs.6,000/- additionally towards bystanders expenses and Rs.4,000/- more towards extra nourishment at the rate of Rs.100/- per day. Towards pain and suffering, the Tribunal awarded an amount of Rs.50,000/-. We are inclined to grant an additional sum of Rs.10,000/-. No amount was granted towards loss of amenities. The injuries noted above as also their impact would constrain us to hold that the appellant must have been deprived of enjoyment of life, as **M.A.C.A.2503/2010** 7 before, for quite long time. Hence, the appellant is entitled to get Rs.60,000/- towards loss of amenities. Towards damage to clothing, the Tribunal awarded an amount of Rs.500/-. We are inclined to grant an additional sum of Rs.500/- under the said head. In the light of assessment/re-assessment made by us, the appellant is entitled to an additional amount of Rs.3,49,780/-. It is awarded. The said amount will carry interest at the rate of 8% per annum from the date of the petition till realisation. The third respondent is directed to deposit the additional compensation along with interest thereon within a period of two months from the date of receipt of a copy of this judgment. Appeal is disposed of. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/B.SUDHEENDRA KUMAR (JUDGE)** **spc/** **M.A.C.A.2503/2010** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.2503/2010** 9 **JUDGMENT September, 2010**